[Federal Register Volume 87, Number 185 (Monday, September 26, 2022)]
[Notices]
[Pages 58313-58329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20701]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC362]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to In-Water Construction at Two Ferry 
Facilities on Bainbridge Island, Washington

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of an incidental harassment authorization 
(IHA).

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an IHA to the Washington State Department of 
Transportation (WSDOT) Ferries Division to incidentally harass marine 
mammals during two in-water construction projects on Bainbridge Island, 
Washington: the Bainbridge Island Ferry Terminal Overhead Loading 
Replacement Project and Eagle Harbor Maintenance Facility Slip F 
Improvement Project.

DATES: This authorization is effective from September 16, 2022 through 
September 15, 2023.

FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems 
accessing these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are proposed or, if the taking is limited to harassment, a notice of a 
proposed IHA is provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth. The definitions 
of all applicable MMPA statutory terms cited above are included in the 
relevant sections below.

Summary of Request

    On February 15, 2022, NMFS received a request from WSDOT for an IHA 
to take marine mammals incidental to the Bainbridge Island Ferry 
Terminal Overhead Loading Replacement Project (the Bainbridge Project) 
and Eagle Harbor Maintenance Facility Slip F Improvement Projects (the 
Eagle Harbor Project) in Bainbridge Island, Washington. The application 
was deemed adequate and complete on July 25, 2022. WSDOT's request is 
for take of 12 species of marine mammal by Level B harassment and, for 
a subset of these species (harbor seal (Phoca vitulina), harbor 
porpoise (Phocoena phocoena), and Dall's porpoise (Phocoenoides 
dalli)), Level A harassment. Neither WSDOT nor NMFS expect serious 
injury or mortality to result from this activity and, therefore, an IHA 
is appropriate.

Description of Proposed Activity

Overview

    The WSDOT Ferries Division (WSF) operates and maintains 19 ferry 
terminals and 1 maintenance facility, all of which are located in 
either Puget Sound or the San Juan Islands. Two projects are planned to 
be conducted: replacement of the Bainbridge Island Ferry Terminal 
overhead loading structure and improvement of the Eagle Harbor 
Maintenance Facility Slip F. Both of the projects are located within 
Eagle Harbor on Bainbridge Island, Washington, would be completed 
within the same in-water work season, would have overlapping ensonified 
areas, and use the same information to estimate marine mammal takes. 
Therefore, WSDOT submitted one application for a single IHA to cover 
both projects.
    The purpose of the Bainbridge Project is to replace the seismically 
vulnerable timber trestle and fixed steel portions of the overhead 
loading structure at the Bainbridge Island Ferry Terminal. The purpose 
of the Eagle Harbor Project is to improve the maintenance efficiency of 
the facility. The facility has six vessel slips whose purpose is to 
maintain the WSF system's vessels.

Dates and Duration

    Due to in-water work timing restrictions established by NMFS and 
the U.S. Army Corps of Engineers, construction in the projects area is 
limited each year from August 1 through February 15. Both the 
Bainbridge Project and the Eagle Harbor Project would be constructed 
during the 2022 to 2023 in-water work season. For the Bainbridge 
Project, in-water construction is expected to occur on up to 57 days 
(Table 1). For the Eagle Harbor Project, in-water construction is 
expected to occur on up to 31 days (Table 2).

Specific Geographic Region

    Both projects are located within Eagle Harbor on Bainbridge Island, 
Washington, approximately 9 miles (mi; 14.5 kilometers (km)) west of 
Seattle, Washington. The Eagle Harbor Maintenance Facility is 
approximately 0.25 mi (0.4 km) southwest of the Bainbridge Island Ferry 
Terminal. Eagle Harbor contains a mix of commercial docks, public 
marinas, private docks, and undeveloped waterfront properties. The 
harbor extends 2 mi (1.2 km) west from the mouth of the harbor, which 
is approximately 900 feet (ft; 274.3 meters (m)) wide and is bounded by 
Wing Point to the north and Bill Point to the south. A large underwater 
sand bar extends to the southeast from Wing Point. Water

[[Page 58314]]

depths within Eagle Harbor are up to 50 ft (15.2 m) but outside the 
harbor, water depths between Bainbridge Island and Seattle can be over 
700 ft (213.4 m).
[GRAPHIC] [TIFF OMITTED] TN26SE22.000

Detailed Description of Specific Activity

Bainbridge Project
    The proposed project elements for the Bainbridge Project include:
    1. Using vibratory and impact hammers to install 31 24-inch (in) 
steel pipe piles for 2 temporary work platforms to support construction 
equipment;
    2. Using vibratory and impact hammers to install four 24-in steel 
pipe piles for a temporary walkway to maintain overhead loading 
operations while the new walkway is constructed;
    3. Using vibratory and impact hammers to install 14 30-in and 12 
36-in steel pipe piles to support the new permanent walkway;
    4. Using a vibratory hammer to remove 76 creosote-treated 12-in 
timber piles and using a saw to cut one 4.5 ft (1.4 m) diameter 
concrete drill shaft at the mudline that supported the existing 
overhead loading walkway; and
    5. Using a vibratory hammer to remove all steel pipe piles 
installed for the temporary walkway and work platforms.

                                                Table 1--Proposed Pile Driving for the Bainbridge Project
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                                   Pile size and                                             Number of     Duration per                      Duration
        Project element                 type        Install or remove        Method            piles      pile (minutes)   Piles per day      (days)
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Temporary work platform and      24-in Steel......  Install..........  Vibratory........              39              30               4              10
 temporary walkway.
                                                                       Impact...........              39              30               4              10
                                                    Remove...........  Vibratory........              39              30               4              10
New Overhead Loading Structure.  24-in Steel......  Install..........  Vibratory........               6              30               2               3
                                                                       Impact...........               6              30               2               3
                                 30-in Steel......  Install..........  Vibratory........               4              30               2               2
                                                                       Impact...........               4              30               2               2
                                 36-in Steel......  Install..........  Vibratory........              12              30               2               6
                                                                       Impact...........              12              30               2               6
Old Overhead Loading Structure   12-in Timber.....  Remove...........  Vibratory........              76              15              15               5
 Removal.
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    Total Temporary Piles Installed and Removed.........................................              39  ..............  ..............  ..............
    Total Permanent Piles Installed.....................................................              26  ..............  ..............  ..............
    Total Timber Piles Removed..........................................................              76  ..............  ..............  ..............

[[Page 58315]]

 
    Total Duration (days)...............................................................  ..............  ..............  ..............              57
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Eagle Harbor Project
    The proposed project elements for the Eagle Harbor Project include:
    1. Using vibratory and impact hammers to install nine 24-in steel 
pipe piles and two 3-in steel pipe piles to support a new trestle and 
vehicle transfer span;
    2. Using a vibratory hammer to install eight 36-in steel reaction 
piles and four 36-in steel fender piles for two new steel wingwalls;
    3. Using a vibratory hammer to install eight 30-in steel reaction 
piles and two 36-in fender piles for two new fixed dolphins; and
    4. Using a vibratory hammer to remove 186 12-in timber piles and 4 
18-in steel pipe piles that supported existing walkways, timber pile 
dolphins, and a U-float.

                                                                   Table 2--Proposed Pile Driving for the Eagle Harbor Project
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                                                                                                                                   Duration  per
           Project element                Pile size and type       Install or remove              Method            Number  of         pile          Duration      Rate per  day     Duration
                                                                                                                       piles         (minutes)        (hours)                         (days)
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Timber Walkway Pile Removal..........  12-in Timber...........  Remove.................  Vibratory..............              52              15              13              15               4
Timber Dolphin Removal...............  12-in Timber...........  Remove.................  Vibratory..............             134              15            33.5              15               9
Temporary Relocated Float............  18-in Steel............  Install................  Vibratory..............               4              30               4               4               1
                                                                Remove.................                                        4              30               3               4               1
U-Float Removal......................  18-in Steel............  Remove.................  Vibratory..............               4              30               4               4               1
Trestle and Transfer Span............  24-in Steel............  Install................  Vibratory..............               9              30             4.5               4               3
                                                                                         Impact.................               9              30             4.5               3               3
                                       36-in Steel............  Install................  Vibratory..............               2              30               1               4               1
                                                                                         Impact.................               2              30               1               3               1
Wingwall.............................  30-in Steel............  Install................  Vibratory..............               8              30               4               4               2
                                       36-in Steel............  Install................  Vibratory..............               4              30               2               4               1
Intermediate Dolphin.................  30-in Steel............  Install................  Vibratory..............               4              30               2               4               1
                                       36-in Steel............  Install................  Vibratory..............               1              30               5               4               1
Outer Dolphin........................  30-in Steel............  Install................  Vibratory..............               4              30               2               4               1
                                       36-in Steel............  Install................  Vibratory..............               2              30               1               4               1
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    Total Piles Removed.........................................................................................             194  ..............  ..............  ..............  ..............
    Total Piles Installed.......................................................................................              38  ..............  ..............  ..............  ..............
    Total Duration (days).......................................................................................  ..............  ..............  ..............  ..............              31
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    A detailed description of the planned construction project was 
provided in the Federal Register notice for the proposed IHA (87 FR 
48623; August 10, 2022). Since that time, no changes have been made to 
the planned construction activities. Therefore, a detailed description 
is not provided here. Please refer to that Federal Register notice for 
the description of the specific activity.
    Mitigation, monitoring, and reporting measures are described in 
detail later in this document (please see Mitigation and Monitoring and 
Reporting).

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to WSDOT was published 
in the Federal Register on August 10, 2022 (87 FR 48623). That notice 
described, in detail, WSDOT's activities, the marine mammal species 
that may be affected by the activities, and the anticipated effects on 
marine mammals. In that notice, we requested public input on the 
request for authorization described therein, our analyses, the proposed 
authorization, and any other aspect of the notice of proposed IHA, and 
requested that interested persons submit relevant information, 
suggestions, and comments. This proposed notice was available for a 30-
day public comment period.
    During the public comment period, the United States Geological 
Survey provided a letter stating that it had no comment. No other 
comments were received.

Changes From the Proposed IHA to Final IHA

    No changes have been made to the authorization itself, but NMFS has 
added a clarification in Table 6 of this notice to note that the source 
levels listed for impact pile driving are attenuated measurements, and 
has corrected the reference for the source levels for impact pile 
driving. See Table 6.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, incorporated here by reference, instead of 
reprinting the information. Additional information regarding population 
trends and threats may be found in NMFS' Stock Assessment Reports 
(SARs; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these 
species (e.g., physical and behavioral descriptions) may be found on 
NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 3 lists all species or stocks for which take is expected and 
proposed to

[[Page 58316]]

be authorized for this activity, and summarizes information related to 
the population or stock, including regulatory status under the MMPA and 
Endangered Species Act (ESA) and potential biological removal (PBR), 
where known. PBR is defined by the MMPA as the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population (as described in NMFS' SARs). While no 
serious injury or mortality is expected to occur, PBR and annual 
serious injury and mortality from anthropogenic sources are included 
here as gross indicators of the status of the species or stocks and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Pacific and Alaska SARs. All values presented in Table 3 are 
the most recent available at the time of publication and are available 
in the 2021 SARs (Carretta et al., 2022; Muto et al., 2022).

                                              Table 3--Species Likely Impacted by the Specified Activities
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                                                                                         ESA/MMPA status;    Stock abundance  (CV,
             Common name                  Scientific name               Stock            strategic  (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Eschrichtiidae:
    Gray whale......................  Eschrichtius robustus..  Eastern N Pacific......  -, -, N             26,960 (0.05, 25,849,         801        131
                                                                                                             2016).
Family Balaenopteridae (rorquals):
    Minke whale.....................  Balaenoptera             California/Oregon/       -, -, N             915 (0.792, 509, 2018)        4.1    >= 0.59
                                       acutorostrata.           Washington.
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
    Long-Beaked Common Dolphin......  Delphinus capensis.....  California.............  -, -, N             83,379 (0.216, 69,636,        668     >=29.7
                                                                                                             2018).
    Bottlenose Dolphin..............  Tursiops truncatus.....  California Coastal.....  -, -, N             453 (0.06, 346, 2011).        2.7      >=2.0
    Pacific White-Sided Dolphin.....  Lagenorhynchus           California/Oregon/       -, -, N             34,999 (0.222, 29,090,        279          7
                                       obliquidens.             Washington.                                  2018).
    Killer Whale....................  Orcinus orca...........  West Coast Transient...  -, -, N             349 \4\ (N/A, 349,            3.5        0.4
                                                                                                             2018).
Family Phocoenidae (porpoises):
    Harbor Porpoise.................  Phocoena phocoena......  Washington Inland        -, -, N             11,233 (0.37, 8,308,           66      >=7.2
                                                                Waters.                                      2015).
    Dall's Porpoise.................  Phocoenoides dalli.....  California/Oregon/       -, -, N             16,498 (0.61, 10,286,          99     >=0.66
                                                                Washington.                                  2019).
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
 sea lions):
    California Sea Lion.............  Zalophus californianus.  U.S....................  -, -, N             257,606 (N/A,233,515,      14,011       >320
                                                                                                             2014).
    Steller Sea Lion................  Eumetopias jubatus.....  Eastern................  -, -, N             43,201 \5\ (see SAR,        2,592        112
                                                                                                             43,201, 2017).
Family Phocidae (earless seals):
    Harbor Seal.....................  Phoca vitulina.........  Washington Northern      -, -, N             11,036 \6\ (UNK, UNK,         UND        9.8
                                                                Inland Waters.                               1999).
    Northern Elephant Seal..........  Mirounga angustirostris  California Breeding....  -, -, N             187,386 (N/A, 85,369,       5,122       13.7
                                                                                                             2013).
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\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual mortality/serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a
  minimum value or range.
\4\ Based on counts of individual animals identified from photo-identification catalogues. Surveys for abundance estimates of these stocks are conducted
  infrequently.
\5\ Best estimate of pup and non-pup counts, which have not been corrected to account for animals at sea during abundance surveys.
\6\ The abundance estimate for this stock is greater than eight years old and is therefore not considered current. PBR is considered undetermined for
  this stock, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as
  these represent the best available information for use in this document.

    As indicated above, all 12 species (with 12 managed stocks) in 
Table 3 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. While humpback whales 
(Megaptera novaeangliae) and killer whales from the Southern Resident 
stock are known to occur in Puget Sound, in consideration of the 
proposed requirements described in the Mitigation and Monitoring and 
Reporting sections of this notice, WSDOT has determined that take of 
these species is unlikely to occur and has therefore not requested take 
of humpback whales or Southern Resident killer whales. NMFS has 
concurred with

[[Page 58317]]

this determination and no take of these species is anticipated or 
authorized.
    A detailed description of the species likely to be affected by 
WSDOT's projects, including brief introductions to species and relevant 
stocks as well as available information regarding population trends and 
threats, and information regarding local occurrence, were provided in 
the Federal Register notice for the proposed IHA (87 FR 48623; August 
10, 2022); since that time, we are not aware of any changes in the 
status of these species and stocks; therefore, detailed descriptions 
are not provided here. Please refer to that Federal Register notice for 
these descriptions.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and 
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. 
(2007, 2019) recommended that marine mammals be divided into hearing 
groups based on directly measured (behavioral or auditory evoked 
potential techniques) or estimated hearing ranges (behavioral response 
data, anatomical modeling, etc.). Note that no direct measurements of 
hearing ability have been successfully completed for mysticetes (i.e., 
low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 4.

                  Table 4--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises,  Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from WSDOT's construction 
activities have the potential to result in harassment of marine mammals 
in the vicinity of the project areas. The Federal Register notice of 
proposed IHA (87 FR 48623; August 10, 2022) included a discussion of 
the effects of underwater noise from WSDOT's activities on marine 
mammals and their habitat. That information and analysis is 
incorporated by reference into the final IHA determination and is not 
repeated here; please refer to the notice of proposed authorization (87 
FR 48623; August 10, 2022).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through the IHA, which will inform both NMFS' consideration 
of ``small numbers,'' and the negligible impact determinations.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes will primarily be by Level B harassment (in the 
form of behavioral disturbance and temporary threshold shift (TTS)), as 
use of the acoustic sources (i.e., vibratory or impact pile driving and 
removal) have the potential to result in disruption of behavioral 
patterns and cause a temporary loss in hearing sensitivity for 
individual marine mammals. There is also some potential for auditory 
injury (Level A harassment) to result for porpoises and harbor seals 
because predicted auditory injury zones are larger. The mitigation and 
monitoring measures are expected to minimize the severity of the taking 
to the extent practicable.
    As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below we describe how the 
authorized take numbers are estimated.
    For acoustic impacts, generally speaking, we estimate take by 
considering: (1) acoustic thresholds above which NMFS believes the best 
available science indicates marine mammals will be behaviorally 
harassed or incur some degree of permanent hearing impairment; (2) the 
area or volume of water that will be ensonified above these levels in a 
day; (3) the density or occurrence of marine mammals within these 
ensonified areas; and, (4) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential

[[Page 58318]]

takes, additional information that can qualitatively inform take 
estimates is also sometimes available (e.g., previous monitoring 
results or average group size). Below, we describe the factors 
considered here in more detail and present the authorized take numbers.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur permanent threshold shift (PTS) of some 
degree (equated to Level A harassment). Thresholds have also been 
developed to identify the pressure levels above which animals may incur 
different types of tissue damage (non-acoustic Level A harassment or 
mortality) from exposure to pressure waves from explosive detonation. 
Thresholds have also been developed identifying the received level of 
in-air sound above which exposed pinnipeds would likely be behaviorally 
harassed.
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Southall et al., 2007, 2021; Ellison et al., 2012). 
Based on what the available science indicates and the practical need to 
use a threshold based on a metric that is both predictable and 
measurable for most activities, NMFS typically uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS generally predicts that marine mammals are 
likely to be behaviorally harassed in a manner considered to be Level B 
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS SPL) of 120 dB (referenced 
to 1 micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile-
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources.
    WSDOT's planned activities include the use of continuous (vibratory 
hammer) and impulsive (impact hammer) sources, and therefore the 120 
and 160 dB re 1 [mu]Pa (rms) thresholds are applicable.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). WSDOT's 
activities include the use of impulsive (impact hammer) and non-
impulsive (vibratory hammer) sources.
    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 5--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                    PTS onset acoustic thresholds *  (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1[mu]Pa\2\s. In this Table, thresholds are abbreviated to reflect American National
  Standards Institute standards (ANSI, 2013). However, peak sound pressure is defined by ANSI as incorporating
  frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
  being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
  hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
  designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
  that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
  exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
  is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and transmission loss 
coefficient.
    The sound field in the project areas is the existing background 
noise plus additional construction noise from the proposed project. 
Marine mammals are expected to be affected by sound generated by the 
primary components of the project (i.e., impact and vibratory pile 
driving).
    In order to calculate distances to the Level A harassment and Level 
B harassment thresholds for the methods and piles being used in these 
projects, NMFS used acoustic monitoring data from previous pile driving 
at the Bainbridge Island Ferry Terminal (impact installation of 24-in 
steel piles) and Eagle Harbor Maintenance Facility (impact installation 
of 30-in steel piles), as well as pile driving at other locations 
within Puget Sound to develop source levels for the various pile types, 
sizes, and methods for the two projects (Table 6). A source level for 
vibratory driving of 18-in steel piles is not available so it is 
conservatively assumed to be equivalent to the source level for 24-in 
steel piles.

[[Page 58319]]



                                  Table 6--Expected Project Sound Source Levels
----------------------------------------------------------------------------------------------------------------
                                                                              Source level
     Pile type and size  (in)             Method         Source level  (dB     measurement        Reference
                                                            re 1 [mu]Pa)      distance  (m)
----------------------------------------------------------------------------------------------------------------
12-in timber.....................  Vibratory removal..  152 dB rms.........              10  Greenbusch Group
                                                                                              (2018).
18-in and 24-in steel............  Vibratory            166 dB rms.........              10  WSDOT (2020) \1\.
                                    installation and
                                    removal.
30-in steel......................  Vibratory            176 dB rms.........               6  WSDOT (2020) \1\.
                                    installation and
                                    removal.
36-in steel......................  Vibratory            184 dB rms.........              10  WSDOT (2020) \1\.
                                    installation.
24-in steel......................  Impact installation  206 dB peak, 179 dB              10  WSDOT (2020) \2\.
                                                         SEL, 195 dB rms.
30-in steel......................  Impact installation  194 dB peak, 182 dB              10  WSDOT (2020) \2\.
                                                         SEL, 184 dB rms.
36-in steel......................  Impact installation  205 dB peak, 178 dB              10  WSDOT (2020) \2\.
                                                         SEL, 191 dB rms.
----------------------------------------------------------------------------------------------------------------
\1\ WSDOT Biological Assessment Manual Table 7-15.
\2\ Bubble curtain-attenuated source levels from WSDOT Biological Assessment Manual Table 7-14.

Level B Harassment Zones

    Transmission loss (TL) is the decrease in acoustic intensity as an 
acoustic pressure wave propagates out from a source. TL parameters vary 
with frequency, temperature, sea conditions, current, source and 
receiver depth, water depth, water chemistry, and bottom composition 
and topography. The general formula for underwater TL is:

TL = B * Log10 (R1/R2)

Where:

TL = transmission loss in dB
B = transmission loss coefficient; for practical spreading equals 15
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement

    The recommended TL coefficient for most nearshore environments is 
the practical spreading value of 15. This value results in an expected 
propagation environment that would lie between spherical and 
cylindrical spreading loss conditions, which is the most appropriate 
assumption for WSDOT's planned activities in the absence of specific 
modelling. The Level B harassment zones for WSDOT's planned activities 
are shown in Table 7.

Level A Harassment Zones

    The ensonified area associated with Level A harassment is more 
technically challenging to predict due to the need to account for a 
duration component. Therefore, NMFS developed an optional User 
Spreadsheet tool to accompany the Technical Guidance that can be used 
to relatively simply predict an isopleth distance for use in 
conjunction with marine mammal density or occurrence to help predict 
potential takes. We note that because of some of the assumptions 
included in the methods underlying this optional tool, we anticipate 
that the resulting isopleth estimates are typically going to be 
overestimates of some degree, which may result in an overestimate of 
potential take by Level A harassment. However, this optional tool 
offers the best way to estimate isopleth distances when more 
sophisticated modeling methods are not available or practical. For 
stationary sources such as pile installation and removal, the optional 
User Spreadsheet tool predicts the distance at which, if a marine 
mammal remained at that distance for the duration of the activity, it 
would be expected to incur PTS. The isopleths generated by the User 
Spreadsheet used the same TL coefficient as the Level B harassment zone 
calculations (i.e., the practical spreading value of 15). Inputs used 
in the User Spreadsheet (e.g., number of piles per day, duration and/or 
strikes per pile) are presented in Tables 1 and 2, and the resulting 
isopleths are reported below in Table 7.

                                                Table 7--Level A Harassment and Level B Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Level A harassment zone  (m)                               Level B
          Pile size/type             Pile driving method --------------------------------------------------------------------------------   harassment
                                                           LF cetaceans    MF cetaceans    HF cetaceans       Phocids        Otariids        zone  (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
12-in timber......................  Vibratory removal...             4.1             0.4             6.1             2.5             0.2       \a\ 1,360
18-in steel.......................  Vibratory                       23.4             2.1            34.5            14.2             1.0      \a\ 11,659
                                     installation/
                                     removal.
24-in steel.......................  Vibratory                       27.1             2.4            40.1            16.5             1.2      \a\ 11,659
                                     installation/
                                     removal.
30-in steel.......................  Vibratory                       65.1             5.8            96.2            39.5             2.8      a b 32,470
                                     installation/
                                     removal.
36-in steel.......................  Vibratory                      485.1            43.0           717.2           294.9            20.7     a b 184,785
                                     installation.
24-in steel.......................  Impact installation.           784.8            27.9           934.8           420.0            30.6       \c\ 2,154
30-in steel.......................  Impact installation.         1,359.6            48.4         1,619.5           727.6            53.0         \c\ 398
36-in steel.......................  Impact installation.           795.9            28.3           948.0           425.9            31.0       \c\ 1,166
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Distance to 120 dB rms threshold.
\b\ Distance to Level B harassment threshold without obstruction; however for these projects, 13,345 m is the maximum in-water distance until land is
  reached.
\c\ Distance to 160 dB rms threshold.


[[Page 58320]]

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information, that 
will inform the quantitative estimate of the take that is reasonably 
likely to occur and proposed for authorization. Unless otherwise 
specified, the term ``pile driving'' in this section, and all following 
sections, may refer to either pile installation or removal. WSDOT first 
estimated take for both projects using the areas ensonified above the 
Level B harassment threshold and density estimates for marine mammals 
in Puget Sound. Density estimates for all species except harbor 
porpoises were from the U.S. Navy's Marine Species Density Database 
(MSDD) for the Northwest Training and Testing (NWTT) Study Area (U.S. 
Navy, 2019). For harbor porpoises, WSDOT used the density estimate from 
Evenson (2016) as it was considered more conservative than the density 
estimate for harbor porpoises from the NWTT MSDD. However, for all 
species except harbor seals and harbor porpoises, WSDOT did not 
consider the resulting take estimates to be realistic (i.e., either 
over- or underestimated take). Instead, WSDOT compiled monitoring 
results from pile driving between August 2017 and February 2021 at the 
Seattle Ferry Terminal Multimodal Project at Colman Dock (WSDOT, 2021) 
(Table 8). Because the Level B harassment zones from vibratory pile 
driving at Colman Dock extended to or near the Bainbridge Island 
shoreline, and because the Level B harassment zones from vibratory pile 
driving at the Bainbridge Ferry Terminal and Eagle Harbor Maintenance 
Facility extend to the Seattle shoreline, WSDOT considered the 
monitoring results from the Seattle Multimodal Project to be the most 
relevant and comprehensive sightings data available for the project 
areas. Based on the Seattle Multimodal Project monitoring results, 
WSDOT used their best professional judgement to estimate the number of 
marine mammals that may be taken incidental to the planned activities.
    NMFS has carefully reviewed WSDOT's analysis and concludes that it 
represents an appropriate and accurate method for estimating incidental 
take caused by WSDOT's activities.

                                                      Table 8--Marine Mammal Density and Sightings
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Average
                    Species                          Density/km\2\          Sightings     sightings/day   Maximum  one-        Take  requested  and
                                                                              total        (372 days)    day  sightings             authorized
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor Seal...................................                     3.91           1,939            5.21              43  Yes.
Northern Elephant Seal........................                   0.0\1\               1           0.003               1  Yes.
California Sea Lion...........................            0.0152-0.2211           2,625            7.05              38  Yes.
Steller Sea Lion..............................            0.0010-0.0478             100            0.27              10  Yes
Unidentified pinniped.........................                      N/A             118             N/A               9  N/A.
Killer Whale Southern Resident................        0.000009-0.007828             297            0.80              26  No.
Killer Whale Transient........................        0.001582-0.002373              47            0.13              20  Yes.
Gray Whale....................................                 0.000086               4           0.011               1  Yes.
Minke Whale...................................                  0.00045               1           0.003               1  Yes.
Unidentified large whale......................                      N/A               2             N/A               1  N/A.
Unidentified small whale......................                      N/A              10             N/A               9  N/A.
Harbor Porpoise...............................                     0.58             413            1.11              40  Yes.
Dall's Porpoise...............................                  0.00045               8            0.02               5  Yes.
Pacific White-sided Dolphin...................                      0.0               2           0.005               2  Yes.
Long-beaked Common Dolphin....................                      0.0               2           0.005               1  Yes.
Common Bottlenose Dolphin.....................                      0.0               6            0.02               2  Yes.
Unidentified dolphin/porpoise.................                      N/A              42             N/A               5  N/A.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Gray Whale
    WSDOT estimated that up to 20 Level B harassment takes of gray 
whales could result from each project, for a total of 40 gray whale 
takes by Level B harassment. In consideration of the infrequent 
occurrence of gray whales in the project areas, the mitigation and 
monitoring measures that WSDOT is required to comply with, including 
marine mammal monitoring and coordination with Orca Network that would 
alert WSDOT to the presence of large whales in the project area (see 
Mitigation), and given the size and visibility of gray whales, WSDOT 
will be able to detect gray whales and stop work before gray whales can 
enter the Level A harassment zones. Therefore, it is unlikely that any 
gray whales would be taken by Level A harassment. No take of gray 
whales by Level A harassment is requested or authorized.
Minke Whale
    WSDOT estimated that up to 20 Level B harassment takes of minke 
whales could result from each project, for a total of 40 minke whale 
takes by Level B harassment. Like gray whales, in consideration of the 
infrequent occurrence of minke whales in the project areas, the 
mitigation and monitoring measures that WSDOT is required to comply 
with, including marine mammal monitoring and coordination with Orca 
Network (see Mitigation), and given the size and visibility of minke 
whales, WSDOT will be able to detect minke whales and stop work before 
minke whales can enter the Level A harassment zones. Therefore, it is 
unlikely that any minke whales would be taken by Level A harassment. No 
take of minke whales by Level A harassment is requested or authorized.
Long-Beaked Common Dolphin
    WSDOT estimated that up to 20 Level B harassment takes of long-
beaked common dolphins could result from each project, for a total of 
40 long-beaked common dolphin takes by Level B harassment. The Level A 
harassment zones for mid-frequency cetaceans are all less than 50 m. 
Given the visibility of long-beaked common dolphins, WSDOT will be able 
to cease pile driving before long-beaked common dolphins can enter the 
Level A harassment zone. No take of long-beaked common dolphins by 
Level A harassment is requested or authorized.
Bottlenose Dolphin
    WSDOT estimated that up to 20 Level B harassment takes of 
bottlenose

[[Page 58321]]

dolphins could result from each project, for a total of 40 bottlenose 
dolphin takes by Level B harassment. The Level A harassment zones for 
mid-frequency cetaceans are all less than 50 m. Given the visibility of 
bottlenose dolphins, WSDOT will be able to cease pile driving before 
bottlenose dolphins can enter the Level A harassment zone. No take of 
bottlenose dolphins by Level A harassment is requested or authorized.
Pacific White-Sided Dolphin
    WSDOT estimated that up to 20 Level B harassment takes of Pacific 
white-sided dolphins could result from each project, for a total of 40 
Pacific white-sided dolphin takes by Level B harassment. The Level A 
harassment zones for mid-frequency cetaceans are all less than 50 m. 
Given the visibility of Pacific white-sided dolphins, WSDOT will be 
able to cease pile driving before Pacific white-sided dolphins can 
enter the Level A harassment zone. No take of Pacific white-sided 
dolphins by Level A harassment is requested or authorized.
Killer Whale (Transient)
    WSDOT estimated that up to 60 Level B harassment takes of transient 
killer whales could result from each project, for a total of 120 killer 
whale takes by Level B harassment. The Level A harassment zones for 
mid-frequency cetaceans are all less than 50 m. Given the visibility of 
killer whales, WSDOT will be able to cease pile driving before killer 
whales can enter the Level A harassment zone. No take of killer whales 
by Level A harassment is requested or authorized.
    As stated above, no take of Southern Resident killer whales is 
expected or authorized.
Harbor Porpoise
    To estimate the number of harbor porpoises that may be taken by 
Level B harassment from the two projects, WSDOT calculated the area 
ensonified above the Level B harassment threshold for each pile size, 
type, and method for both projects. WSDOT then multiplied the estimated 
density of harbor porpoises in the area (0.58 per km\2\; Evenson 2016) 
by the ensonified area and the expected days of work for each project 
element (Table 9).

                                            Table 9--Estimated Take of Harbor Porpoises by Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Bainbridge     Eagle Harbor
                                                                                                                          takes by Level  takes by Level
                                                            Bainbridge      Bainbridge     Eagle Harbor    Eagle Harbor    B harassment    B harassment
               Pile size, type, and method                  ensonified     days of work     ensonified     days of work    by pile size,   by pile size,
                                                           area  (km\2\)                   area  (km\2\)                     type, and       type, and
                                                                                                                              method          method
--------------------------------------------------------------------------------------------------------------------------------------------------------
12-in timber vibratory..................................             0.5               5             0.8              13               3               6
18-in steel vibratory...................................             N/A               0            23.2               3               0              27
24-in steel vibratory...................................             2.3               2            23.2               3               3              40
30-in steel vibratory...................................             2.3              23            23.2               4             320              53
36-in steel vibratory...................................             2.3               6            23.2               4              84              53
24-in steel impact......................................             0.9              13            0.87               3              17               2
30-in steel impact......................................             0.4               2             N/A               0               3               0
36-in steel impact......................................             0.9               6            0.87               1               8               1
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............  ..............  ..............  ..............             298             183
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The areas ensonified above the Level A harassment threshold for 
high-frequency cetaceans has been omitted from the areas ensonified 
above the Level B harassment threshold presented in Table 9. For impact 
installation of 30-in steel piles, the Level A harassment zone for 
high-frequency cetaceans is approximately 1,620 m. To estimate the 
number of harbor porpoises that may be present within the Level A 
harassment zone, WSDOT used the average sightings rate from the Seattle 
Multimodal Project at Colman Dock (0.691 harbor porpoises per day; 
Table 8) multiplied by the days of impact pile driving expected for 
each project (27 days for the Bainbridge Project and 8 days for the 
Eagle Harbor Project) to estimate that 19 and 6 harbor porpoises may be 
taken by Level A harassment from the Bainbridge Project and Eagle 
Harbor Project, respectively. Therefore, WSDOT requested, and NMFS has 
authorized, a total of 25 takes of harbor porpoises by Level A 
harassment.
Dall's Porpoise
    WSDOT estimated that up to 20 Level B harassment takes of Dall's 
porpoises could result from each project, for a total of 40 Dall's 
porpoise takes by Level B harassment.
    For impact installation of 30-in steel piles, the Level A 
harassment zone for high-frequency cetaceans is approximately 1,620 m. 
Dall's porpoises are considered rare in the project area and are 
unlikely to be present within the Level A harassment zones but WSDOT 
conservatively estimates that no more than 5 Dall's porpoises could 
enter the Level A harassment zones of each project. Therefore, WSDOT 
requested, and NMFS has authorized, a total of 10 takes of Dall's 
porpoises by Level A harassment.
California Sea Lion
    Over the course of 372 days of monitoring for the Seattle 
Multimodal Project at Colman Dock, the average number of California sea 
lions observed per day was 7.05 (Table 8). WSDOT used that average 
sightings rate multiplied by the days of work for each project (57 days 
for the Bainbridge Project and 31 days for the Eagle Harbor Project) to 
estimate that 402 and 219 California sea lions may be taken by Level B 
harassment from the Bainbridge Project and Eagle Harbor Project, 
respectively, for a total of 621 takes of California sea lions by Level 
B harassment.
    The largest Level A harassment zone for otariid pinnipeds is 53 m. 
WSDOT would be required to implement a 60 m shutdown zone for otariids 
for all pile driving activities. At that close range, WSDOT will be 
able to detect California sea lions and implement the required shutdown 
measures before California sea lions can enter the Level A harassment 
zone. Therefore, no takes of California sea lions by Level A harassment 
are requested or authorized.
Steller Sea Lion
    WSDOT estimated that 180 Level B harassment takes of Steller sea 
lions could result from each project, for a total of 360 Steller sea 
lion takes by Level B harassment. The largest Level A

[[Page 58322]]

harassment zone for otariid pinnipeds is 53 m. WSDOT would be required 
to implement a 60 m shutdown zone for otariids for all pile driving 
activities. At that close range, WSDOT will be able to detect Steller 
sea lions and implement the required shutdown measures before Steller 
sea lions can enter the Level A harassment zone. Therefore, no takes of 
Steller sea lions by Level A harassment are requested or authorized.
Harbor Seal
    To estimate the number of harbor seals that may be taken by Level B 
harassment from the two projects, WSDOT calculated the area ensonified 
above the Level B harassment threshold for each pile size, type, and 
method for both projects. WSDOT then multiplied the estimated density 
of harbor seals in the area (3.91 per km\2\; Navy, 2019) by the 
ensonified area and the expected days of work for each project element 
(Table 10). In total, WSDOT estimates that 3,450 harbor seals may be 
taken by Level B harassment.

                                             Table 10--Estimated Take of Harbor Seals by Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Bainbridge     Eagle Harbor
                                                            Bainbridge      Bainbridge     Eagle Harbor    Eagle Harbor    takes by pile   takes by pile
               Pile size, type, and method                  ensonified     days of work     ensonified     days of work     size, type,     size, type,
                                                           area  (km\2\)                   area  (km\2\)                    and method      and method
--------------------------------------------------------------------------------------------------------------------------------------------------------
12-in timber vibratory..................................             1.5               5             1.6              13              30              81
18-in steel vibratory...................................             N/A               0            24.1               3               0             188
24-in steel vibratory...................................            24.0               2            24.1               3             188             283
30-in steel vibratory...................................            24.0              23            24.1               4           2,158             377
36-in steel vibratory...................................            24.0               6            24.1               4             563             377
24-in steel impact......................................             2.0              13            1.66               3             102              20
30-in steel impact......................................             1.3               2             N/A               0              10               0
36-in steel impact......................................             2.0               6            1.66               1              47               7
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............  ..............  ..............  ..............           2,117           1,333
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The areas ensonified above the Level A harassment threshold for 
phocid pinnipeds has been omitted from the areas ensonified above the 
Level B harassment threshold presented in Table 10. For impact 
installation of 30-in steel piles, the Level A harassment zone for 
phocid pinnipeds is approximately 728 m. To estimate the number of 
harbor seals that may be present within the Level A harassment zone, 
WSDOT used the average sightings rate from the Seattle Multimodal 
Project at Colman Dock (5.21 harbor seals per day; Table 8) multiplied 
by the days of impact pile driving expected for each project (27 days 
for the Bainbridge Project and 8 days for the Eagle Harbor Project) to 
estimate that 141 and 42 harbor seals may be taken by Level A 
harassment from the Bainbridge Project and Eagle Harbor Project, 
respectively. Therefore, WSDOT requested, and NMFS has authorized, a 
total of 183 takes of harbor seals by Level A harassment.
Northern Elephant Seal
    Individual elephant seals have occasionally been reported in 
central Puget Sound (e.g., Orca Network, 2020), but are considered rare 
in the project areas. WSDOT estimated that up to 10 Level B harassment 
takes of northern elephant seals could result from each project, for a 
total of 20 northern elephant seal takes by Level B harassment. The 
largest Level A harassment zone (728 m) occurs during impact 
installation of 30-in steel pipe piles (Table 7). It is unlikely that 
northern elephant seals would be found within this zone, and even more 
unlikely that northern elephant seals would be found within the Level A 
harassment zones for vibratory pile driving (up to 295 m). However, 
even if northern elephant seals were encountered in the project areas, 
at that close range, WSDOT will be able to detect them and implement 
the required shutdown measures before any northern elephant seals can 
enter the Level A harassment zones. Therefore, no take of northern 
elephant seals by Level A harassment is requested or authorized.

[[Page 58323]]



  Table 11--Authorized Take of Marine Mammals by Level A and Level B Harassment From the Bainbridge Project by
                                                Species and Stock
----------------------------------------------------------------------------------------------------------------
                                                                                    Authorized      Authorized
                    Species                                   Stock                take by Level   take by Level
                                                                                   B harassment    A harassment
----------------------------------------------------------------------------------------------------------------
Gray whale....................................  Eastern North Pacific...........              20               0
Minke whale...................................  California/Oregon/Washington....              20               0
Killer whale..................................  West Coast Transient............              60               0
Bottlenose dolphin............................  California Coastal..............              20               0
Long-beaked common dolphin....................  California......................              20               0
Pacific white-sided dolphin...................  ................................              20               0
Harbor porpoise...............................  Washington Inland Waters........             298              19
Dall's porpoise...............................  California/Oregon/Washington....              20               5
California sea lion...........................  U.S.............................             402               0
Steller sea lion..............................  Eastern.........................             180               0
Northern elephant seal........................  California Breeding.............              10               0
Harbor seal...................................  Washington Northern Inland                 2,117             141
                                                 Waters.
----------------------------------------------------------------------------------------------------------------


 Table 12--Authorized Take of Marine Mammals by Level A and Level B Harassment From the Eagle Harbor Project by
                                                Species and Stock
----------------------------------------------------------------------------------------------------------------
                                                                                    Authorized      Authorized
                    Species                                   Stock                take by Level   take by Level
                                                                                   B harassment    A harassment
----------------------------------------------------------------------------------------------------------------
Gray whale....................................  Eastern North Pacific...........              20               0
Minke whale...................................  California/Oregon/Washington....              20               0
Killer whale..................................  West Coast Transient............              60               0
Bottlenose dolphin............................  California Coastal..............              20               0
Long-beaked common dolphin....................  California......................              20               0
Pacific white-sided dolphin...................  ................................              20               0
Harbor porpoise...............................  Washington Inland Waters........             183               6
Dall's porpoise...............................  California/Oregon/Washington....              20               5
California sea lion...........................  U.S.............................             219               0
Steller sea lion..............................  Eastern.........................             180               0
Northern elephant seal........................  California Breeding.............              10               0
Harbor seal...................................  Washington Northern Inland                 1,333              42
                                                 Waters.
----------------------------------------------------------------------------------------------------------------


  Table 13--Total Authorized Take of Marine Mammals by Level A and Level B Harassment, by Species and Stock and
                                            Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
                                                    Authorized      Authorized         Total
            Species                   Stock        take by Level   take by Level    authorized      Percent of
                                                   A harassment    B harassment        take            stock
----------------------------------------------------------------------------------------------------------------
Gray whale....................  Eastern North                  0              40              40             0.2
                                 Pacific.
Minke whale...................  California/                    0              40              40            11.0
                                 Oregon/
                                 Washington.
Killer whale..................  West Coast                     0             120             120            34.4
                                 Transient.
Bottlenose dolphin............  California                     0              40              40             8.8
                                 Coastal.
Long-beaked common dolphin....  California......               0              40              40             3.2
Pacific white-sided dolphin...  California/                    0              40              40             0.2
                                 Oregon/
                                 Washington.
Harbor porpoise...............  Washington                    25             481             506             5.0
                                 Inland Waters.
Dall's porpoise...............  California/                   10              40              50             0.3
                                 Oregon/
                                 Washington.
California sea lion...........  U.S.............               0             621             621            0.24
Steller sea lion..............  Eastern.........               0             360             360            0.83
Northern elephant seal........  California                     0              20              20            0.01
                                 Breeding.
Harbor seal...................  Washington                   183           3,450           3,633            32.9
                                 Northern Inland
                                 Waters.
----------------------------------------------------------------------------------------------------------------

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks, and their habitat (50 CFR 
216.104(a)(11)).

[[Page 58324]]

    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, NMFS 
considers two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations.

Shutdown Zones

    Before the commencement of in-water construction activities, WSDOT 
must establish shutdown zones for all activities. The purpose of a 
shutdown zone is generally to define an area within which shutdown of 
the activity would occur upon sighting of a marine mammal (or in 
anticipation of an animal entering the defined area). Pile driving 
would also not commence until all marine mammals are clear of their 
respective shutdown zones. Shutdown zones are established in 
consideration of the Level A harassment zones and therefore typically 
vary based on the activity type and marine mammal hearing group. 
However, rather than establishing different shutdown zones for each 
hearing group for each project element, WSDOT proposed, and NMFS has 
included in the authorization, simplified shutdown zones and only one 
or two shutdown zones for each hearing group to implement across all 
project elements (Table 14). For example, the 720 m shutdown zone for 
low-frequency and high-frequency cetaceans for all vibratory pile 
driving activities encompasses both the largest Level A harassment zone 
for high-frequency cetaceans (717.2 m; see Table 7) and the largest 
Level A harassment zone for low-frequency cetaceans (485.1 m; see Table 
7). This conservatively protects animals in both hearing groups, 
simplifies analysis and monitoring, and presents minimal risks to 
implementing the project, as marine mammals in these hearing groups are 
unlikely to be present within 720 m of the construction site during 
pile driving activities. For impact pile driving, WSDOT must retain the 
720 m shutdown zone for high-frequency cetaceans but increase the 
shutdown zone for low-frequency cetaceans to 2,175 m which encompasses 
the largest Level B harassment zone for impact pile driving, and is 
also the required shutdown zone for preventing take of unauthorized 
species (e.g., Southern Resident killer whales, humpback whales) (Table 
14). The Level A harassment zones for high-frequency cetaceans from 
impact pile driving are all greater than 720 m (Table 7), thus any 
high-frequency cetacean that enters the Level A harassment zone beyond 
720 m must be recorded as taken by Level A harassment.
    At minimum, the shutdown zone for all hearing groups and all 
activities is 10 m. For in-water heavy machinery work other than pile 
driving (e.g., standard barges, etc.), if a marine mammal comes within 
10 m, operations must cease and vessels must reduce speed to the 
minimum level required to maintain steerage and safe working 
conditions. This type of work could include, for example, the movement 
of the barge to the pile location or positioning of the pile on the 
substrate via a crane.
    WSDOT must also establish shutdown zones for all marine mammals for 
which take has not been authorized or for which incidental take has 
been authorized but the authorized number of takes has been met. These 
zones are equivalent to the Level B harassment zones for each activity 
(see Table 14).
    WSDOT must also implement shutdown measures for Southern Resident 
killer whales and humpback whales. If Southern Resident killer whales 
or humpback whales are sighted within the vicinity of the project areas 
and are approaching the Level B harassment zone (see Table 14), WSDOT 
must shut down the pile driving equipment to avoid possible take of 
these species. If a killer whale approaches the Level B harassment zone 
during pile driving, and it is unknown whether it is a Southern 
Resident killer whale or a transient killer whale, it must be assumed 
to be a Southern Resident killer whale and WSDOT would implement the 
shutdown measure.
    If a Southern Resident killer whale, unidentified killer whale, or 
humpback whale enters the Level B harassment zone undetected, in-water 
pile driving must be suspended until the whale exits the Level B 
harassment zone, or 15 minutes have elapsed with no sighting of the 
animal, to avoid further Level B harassment.

                                          Table 14--Shutdown Zones for the Bainbridge and Eagle Harbor Projects
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Shutdown zone  (m)
                                                      --------------------------------------------------------------------------------------------------
                                                                                                                                            Southern
                                                                                                                                        Resident  killer
                 Pile type and method                                                                                                  whales,  humpback
                                                         LF cetacean     MF cetacean     HF cetacean       Phocids        Otariids     whales, and other
                                                                                                                                          unauthorized
                                                                                                                                            species
--------------------------------------------------------------------------------------------------------------------------------------------------------
12-in timber vibratory...............................             720              60             720              60              60              2,175
18-in steel vibratory................................             720              60             720              60              60         \a\ 13,345
24-in steel vibratory................................             720              60             720              60              60         \a\ 13,345
30-in steel vibratory................................             720              60             720              60              60         \a\ 13,345
36-in steel vibratory................................             720              60             720              60              60         \a\ 13,345
24-in steel impact...................................           2,175              60             720              60              60              2,175
30-in steel impact...................................           2,175              60             720              60              60              2,175
36-in steel impact...................................           2,175              60             720              60              60              2,175
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ 13,345 m is the maximum distance sound can travel before reaching land.


[[Page 58325]]

Protected Species Observers

    The placement of protected species observers (PSOs) during all pile 
driving activities (described in the Monitoring and Reporting section) 
must ensure that the entire shutdown zone is visible. Should 
environmental conditions deteriorate such that the entire shutdown zone 
would not be visible (e.g., fog, heavy rain), pile driving must be 
delayed until the PSO is confident marine mammals within the shutdown 
zone could be detected.
Monitoring for Level A and Level B Harassment
    PSOs must monitor the Level B harassment zones to the extent 
practicable, and all of the Level A harassment zones. Monitoring zones 
provide utility for observing by establishing monitoring protocols for 
areas adjacent to the shutdown zones. Monitoring zones enable observers 
to be aware of and communicate the presence of marine mammals in the 
project areas outside the shutdown zones and thus prepare for a 
potential cessation of activity should the animal enter the shutdown 
zone.
Pre-Activity Monitoring
    Prior to the start of daily in-water construction activity, or 
whenever a break in pile driving of 30 minutes or longer occurs, PSOs 
must observe the shutdown and monitoring zones for a period of 30 
minutes. The shutdown zone is considered cleared when a marine mammal 
has not been observed within the zone for that 30-minute period. If a 
marine mammal is observed within the shutdown zones listed in Table 14, 
pile driving activity must be delayed or halted. If pile driving is 
delayed or halted due to the presence of a marine mammal, the activity 
must not commence or resume until either the animal has voluntarily 
exited and been visually confirmed beyond the shutdown zones or 15 
minutes have passed without re-detection of the animal. When a marine 
mammal for which Level B harassment take is authorized is present in 
the Level B harassment zone, activities may begin and Level B 
harassment take must be recorded. If work ceases for more than 30 
minutes, the pre-activity monitoring of the shutdown zones would 
commence. A determination that the shutdown zone is clear must be made 
during a period of good visibility (i.e., the entire shutdown zone and 
surrounding waters must be visible to the naked eye).
Coordination With Local Marine Mammal Research Network
    Prior to the start of pile driving for the day, the PSOs must 
contact the Orca Network to find out the location of the nearest marine 
mammal sightings. The Local Marine Mammal Research Network consists of 
a list of over 600 (and growing) residents, scientists, and government 
agency personnel in the United States and Canada. Sightings are called 
or emailed into the Orca Network and immediately distributed to other 
sighting networks including: the NMFS Northwest Fisheries Science 
Center, the Center for Whale Research, Cascadia Research, the Whale 
Museum Hotline, and the British Columbia Sightings Network.
    Sightings information collected by the Orca Network includes 
detection by hydrophone. The SeaSound Remote Sensing Network is a 
system of interconnected hydrophones installed in the marine 
environment of Haro Strait (west side of San Juan Island) to study orca 
communication, in-water noise, bottom fish ecology, and local climatic 
conditions. A hydrophone at the Port Townsend Marine Science Center 
measures average in-water sound levels and automatically detects 
unusual sounds. These passive acoustic devices allow researchers to 
hear when different marine mammals come into the region. This acoustic 
network, combined with the volunteer visual sighting network allows 
researchers to document presence and location of various marine mammal 
species.

Soft Start

    Soft-start procedures are used to provide additional protection to 
marine mammals by providing warning and/or giving marine mammals a 
chance to leave the area prior to the hammer operating at full 
capacity. For impact pile driving, contractors are required to provide 
an initial set of three strikes from the hammer at reduced energy, 
followed by a 30-second waiting period, then two subsequent reduced-
energy strike sets. Soft start must be implemented at the start of each 
day's impact pile driving and at any time following cessation of impact 
pile driving for a period of 30 minutes or longer.

Bubble Curtain

    A bubble curtain must be employed during impact installation or 
proofing of steel piles, unless the piles are driven in the dry, or 
water is less than 3 ft (0.9 m) in depth. A noise attenuation device is 
not required during vibratory pile driving. If a bubble curtain or 
similar measure is used, it must distribute air bubbles around 100 
percent of the piling perimeter for the full depth of the water column. 
Any other attenuation measure must provide 100 percent coverage in the 
water column for the full depth of the pile. The lowest bubble ring 
must be in contact with the mudline for the full circumference of the 
ring. The weights attached to the bottom ring must ensure 100 percent 
mudline contact. No parts of the ring or other objects may prevent full 
mudline contact.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means of effecting the least 
practicable impact on the affected species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present while 
conducting the activities. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the activity; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or

[[Page 58326]]

cumulative), other stressors, or cumulative impacts from multiple 
stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Visual Monitoring

    Marine mammal monitoring during pile driving activities must be 
conducted by PSOs meeting NMFS' standards and in a manner consistent 
with the following:
     Independent PSOs (i.e., not construction personnel) who 
have no other assigned tasks during monitoring periods must be used;
     At least one PSO must have prior experience performing the 
duties of a PSO during construction activity pursuant to a NMFS-issued 
incidental take authorization;
     Other PSOs may substitute education (degree in biological 
science or related field) or training for experience; and
     Where a team of three or more PSOs is required, a lead 
observer or monitoring coordinator must be designated. The lead 
observer must have prior experience working as a marine mammal observer 
during construction.
    PSOs must have the following additional qualifications:
     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including, but not limited to, the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    During impact driving of all steel piles, and during vibratory 
removal of timber piles, WSDOT must have three PSOs stationed to 
monitor the project area: one at the construction site, one across 
Eagle Harbor looking toward the construction site, and one on board the 
Seattle-Bainbridge ferry. For vibratory driving of all steel piles, 
WSDOT must have five PSOs to monitor the project area: three at the 
locations described for impact pile driving, with one additional PSO 
stationed on the Seattle waterfront and one stationed on Alki Beach 
looking west toward Bainbridge Island.
    Monitoring must be conducted 30 minutes before, during, and 30 
minutes after all in water construction activities. In addition, 
observers must record all incidents of marine mammal occurrence, 
regardless of distance from activity, and must document any behavioral 
reactions in concert with distance from piles being driven or removed. 
Pile driving activities include the time to install or remove a single 
pile or series of piles, as long as the time elapsed between uses of 
the pile driving equipment is no more than 30 minutes.

Reporting

    A draft marine mammal monitoring report must be submitted to NMFS 
within 90 days after the completion of pile driving activities, or 60 
days prior to a requested date of issuance of any future IHAs for the 
project, or other projects at the same location, whichever comes first. 
The marine mammal report must include an overall description of work 
completed, a narrative regarding marine mammal sightings, and 
associated PSO data sheets. Specifically, the report must include:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period, including: (a) How many and what type of piles were 
driven or removed and the method (i.e., impact or vibratory); and (b) 
the total duration of time for each pile (vibratory driving) number of 
strikes for each pile (impact driving);
     PSO locations during marine mammal monitoring; and
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance.
    For each observation of a marine mammal, the following must be 
reported:
     Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting;
     Time of sighting;
     Identification of the animal(s) (e.g., genus/species, 
lowest possible taxonomic level, or unidentified), PSO confidence in 
identification, and the composition of the group if there is a mix of 
species;
     Distance and location of each observed marine mammal 
relative to the pile being driven or hole being drilled for each 
sighting;
     Estimated number of animals (min/max/best estimate);
     Estimated number of animals by cohort (adults, juveniles, 
neonates, group composition, etc.);
     Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such as 
ceasing feeding, changing direction, flushing, or breaching);
     Number of marine mammals detected within the harassment 
zones, by species; and
     Detailed information about implementation of any 
mitigation (e.g., shutdowns and delays), a description of specified 
actions that ensued, and resulting changes in behavior of the 
animal(s), if any.
    If no comments are received from NMFS within 30 days, the draft 
report will constitute the final report. If comments are received, a 
final report addressing NMFS' comments must be submitted within 30 days 
after receipt of comments. All PSO datasheets and/or raw sighting data 
must be submitted with the draft marine mammal report.
    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, WSDOT must report the 
incident to the Office of Protected Resources (OPR) 
([email protected]), NMFS and to the West Coast Region 
(WCR) regional stranding coordinator as soon as feasible. If the death 
or injury was clearly caused by the specified activity, WSDOT must 
immediately cease the specified activities until NMFS is able to review 
the circumstances of the incident and determine what, if any, 
additional measures are appropriate to ensure compliance with the terms 
of the IHAs. WSDOT must not resume their activities until notified by 
NMFS.
    The report must include the following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and

[[Page 58327]]

updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as 
effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338; 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, or ambient noise levels).
    Pile driving activities from the Bainbridge and Eagle Harbor 
Projects have the potential to disturb or displace marine mammals. 
Specifically, the project activities may result in take, in the form of 
Level A and Level B harassment, from underwater sounds generated from 
pile driving. Potential takes could occur if individuals are present in 
the ensonified zone when these activities are underway.
    The authorized takes from Level A and Level B harassment would be 
due to potential behavioral disturbance, TTS, and PTS. No serious 
injury or mortality is anticipated or authorized given the nature of 
the activities and measures designed to minimize the possibility of 
injury to marine mammals. The potential for harassment is minimized 
through the construction method and the implementation of the planned 
mitigation measures (see Mitigation section).
    To avoid repetition, the majority of our analysis applies to all 
the species listed in Table 3, given that the anticipated effects of 
these projects on different marine mammal stocks are expected to be 
relatively similar in nature. Where there are special circumstances for 
a species or stock (e.g., gray whales), they are included as a separate 
subsection below.
    NMFS has identified key factors which may be employed to assess the 
level of analysis necessary to conclude whether potential impacts 
associated with a specified activity should be considered negligible. 
These include (but are not limited to) the type and magnitude of 
taking, the amount and importance of the available habitat for the 
species or stock that is affected, the duration of the anticipated 
effect to the species or stock, and the status of the species or stock. 
The following factors support negligible impact determinations for all 
affected stocks.
    Take by Level A harassment is authorized for three species (harbor 
seals, harbor porpoise, and Dall's porpoise) to account for the 
possibility that an animal could enter a Level A harassment zone prior 
to detection, and remain within that zone for a duration long enough to 
incur PTS. Any take by Level A harassment is expected to arise from, at 
most, a small degree of PTS, i.e., minor degradation of hearing 
capabilities within regions of hearing that align most completely with 
the energy produced by impact pile driving (i.e. the low-frequency 
region below 2 kilohertz (kHz)), not severe hearing impairment or 
impairment within the ranges of greatest hearing sensitivity. Animals 
would need to be exposed to higher levels and/or longer duration than 
are expected to occur here in order to incur any more than a small 
degree of PTS. Two of the three species for which Level A harassment is 
authorized are high-frequency cetaceans (harbor porpoise and Dall's 
porpoise), and the hearing ability of the third species for which Level 
A harassment is authorized (harbor seal) below 2 kHz is also poor 
(NMFS, 2018). Given the hearing ranges of these three species, PTS 
incurred at the low frequencies of pile driving noise would not 
interfere either with conspecific communication or echolocation, and 
therefore would not be expected to impact the survival or reproductive 
abilities of the affected individuals, let alone the stock or 
population.
    As described above, NMFS expects that marine mammals would likely 
move away from an aversive stimulus, especially at levels that would be 
expected to result in PTS, given sufficient notice through use of soft 
start. WSDOT is also required to shut down pile driving activities if 
marine mammals approach within hearing group-specific zones (see Table 
14), further minimizing the likelihood and degree of PTS that would be 
incurred. Even absent mitigation, no serious injury or mortality from 
construction activities is anticipated or authorized.
    Effects on individuals that are taken by Level B harassment in the 
form of behavioral disruption, on the basis of reports in the 
literature as well as monitoring from other similar activities, will 
likely be limited to reactions such as avoidance, increased swimming 
speeds, increased surfacing time, or decreased foraging (if such 
activity were occurring) (e.g., Thorson and Reyff, 2006). Most likely, 
individuals would simply move away from the sound source and 
temporarily avoid the area where pile driving is occurring. If sound 
produced by project activities is sufficiently disturbing, animals are 
likely to simply avoid the area while the activities are occurring, 
particularly as the project is located in a busy harbor with high 
amounts of vessel traffic, including large ferry boats. We expect that 
any avoidance of the project areas by marine mammals would be temporary 
in nature and that any marine mammals that avoid the project areas 
during construction would not be permanently displaced. Short-term 
avoidance of the project areas and energetic impacts of interrupted 
foraging or other important behaviors is unlikely to affect the 
reproduction or survival of individual marine mammals, and the effects 
of behavioral disturbance on individuals is not likely to accrue in a 
manner that would affect the rates of recruitment or survival of any 
affected stock.
    Additionally, and as noted previously, some subset of the 
individuals that are behaviorally harassed could also simultaneously 
incur some small degree of TTS for a short duration of time. However, 
since the hearing sensitivity of individuals that incur TTS is expected 
to recover completely within minutes to hours, it

[[Page 58328]]

is unlikely that the brief hearing impairment would affect the 
individual's long-term ability to forage and communicate with 
conspecifics, and would therefore not likely impact reproduction or 
survival of any individual marine mammal, let alone adversely affect 
rates of recruitment or survival of the species or stock.
    The projects are also not expected to have significant adverse 
effects on affected marine mammals' habitats. The project activities 
will not modify existing marine mammal habitat for a significant amount 
of time. The activities may cause some fish to leave the area of 
disturbance, thus temporarily impacting marine mammals' foraging 
opportunities in a limited portion of the foraging range; but, because 
of the short duration of the activities and the relatively small area 
of the habitat that may be affected (with no known particular 
importance to marine mammals), the impacts to marine mammal habitat are 
not expected to cause significant or long-term negative consequences. 
Aside from the biologically important area (BIA) for gray whales 
described below, there are no known areas of importance for other 
marine mammals, such as feeding or pupping areas, in the project area.
    For all species and stocks, take would occur within a limited, 
relatively confined area (Eagle Harbor within central Puget Sound) of 
the stocks' ranges. Given the availability of suitable habitat nearby, 
any displacement of marine mammals from the project areas is not 
expected to affect marine mammals' fitness, survival, and reproduction 
due to the limited geographic area that will be affected in comparison 
to the much larger habitat for marine mammals in Puget Sound. Level A 
harassment and Level B harassment will be reduced to the level of least 
practicable adverse impact to the marine mammal species or stocks and 
their habitat through use of mitigation measures described herein. Some 
individual marine mammals in the project areas may be present and be 
subject to repeated exposure to sound from pile driving on multiple 
days. However, these individuals would likely return to normal behavior 
during gaps in pile driving activity. Eagle Harbor is a busy harbor and 
monitoring reports from previous in-water pile driving activities along 
the nearby Seattle waterfront (e.g., WSDOT, 2022) indicate that marine 
mammals continue to remain in the greater project area throughout pile 
driving activities. Therefore, any behavioral effects of repeated or 
long duration exposures are not expected to negatively affect survival 
or reproductive success of any individuals. Thus, even repeated Level B 
harassment of some small subset of an overall stock is unlikely to 
result in any effects on rates of reproduction and survival of the 
stock.

Gray Whales

    Puget Sound is part of a BIA for migrating gray whales 
(Calambokidis et al., 2015). While Eagle Harbor is included in the BIA, 
gray whales typically remain further north in Puget Sound, primarily in 
the waters around Whidbey Island (Calambokidis et al., 2018). Gray 
whales are rarely observed in central Puget Sound, and have never been 
documented inside Eagle Harbor. Therefore, even though the project 
areas overlap with the BIA, the infrequent occurrence of gray whales 
suggests that the projects would have minimal, if any, impact on the 
migration of gray whales in the BIA, and would therefore not affect 
reproduction or survival.
    There is an ongoing UME for gray whales (see the Description of 
Marine Mammals in the Area of Specified Activities section of the 
Federal Register notice of proposed IHA (87 FR 48623; August 10, 
2022)). However, we do not expect the authorized takes to exacerbate or 
compound upon this ongoing UME. As noted previously, no Level A 
harassment, serious injury, or mortality of gray whales is expected or 
authorized, and any Level B harassment takes of gray whales would most 
likely be in the form of behavioral disturbance. Preliminary findings 
from necropsied gray whales that are considered part of the ongoing UME 
have shown evidence of emaciation, suggesting that impacts to feeding 
would be of most concern. However, the project areas have not been 
identified as important for feeding of gray whales. Additionally, the 
project areas are not considered important for breeding gray whales. 
Therefore the projects are unlikely to disrupt any critical behaviors 
(e.g., feeding, mating) or have any effect on the reproduction or 
survival of gray whales, even in light of the ongoing UME.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from these 
activities are not expected to adversely affect any of the species or 
stocks through effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or 
authorized for either project;
     Level A harassment is not anticipated or authorized for 9 
of the 12 species. For the other three species, Level A harassment 
would be in the form of a slight degree of PTS;
     Level B harassment would be in the form of behavioral 
disturbance, primarily resulting in avoidance of the project areas 
around where impact or vibratory pile driving is occurring, and some 
low-level TTS that may limit the detection of acoustic cues for 
relatively brief amounts of time in relatively confined footprint of 
the activities;
     Nearby areas of similar habitat value within Puget Sound 
are available for marine mammals that may temporarily vacate the 
project areas during construction activities for both projects;
     Effects on species that serve as prey for marine mammals 
from the activities are expected to be short-term and, therefore, any 
associated impacts on marine mammal feeding are not expected to result 
in significant or long-term consequences for individuals, or to accrue 
to adverse impacts on their populations from either project;
     The number of authorized takes by Level B harassment is 
relatively low for all stocks for both projects;
     The ensonified areas from both projects are very small 
relative to the overall habitat ranges of all species and stocks, and 
will not adversely affect ESA-designated critical habitat, or cause 
more than minor impacts in any BIAS or any other areas of known 
biological importance;
     The lack of anticipated significant or long-term negative 
effects to marine mammal habitat from either project;
     The efficacy of the mitigation measures in reducing the 
effects of the specified activities on all species and stocks for both 
projects; and
     Monitoring reports from similar work in Puget Sound that 
have documented little to no effect on individuals of the same species 
that could be impacted by the specified activities from both projects.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the planned activity will have a negligible impact on all affected 
marine mammal species or stocks.

Small Numbers

    As noted previously, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available,

[[Page 58329]]

NMFS compares the number of individuals taken to the most appropriate 
estimation of abundance of the relevant species or stock in our 
determination of whether an authorization is limited to small numbers 
of marine mammals. When the predicted number of individuals to be taken 
is fewer than one-third of the species or stock abundance, the take is 
considered to be of small numbers. Additionally, other qualitative 
factors may be considered in the analysis, such as the temporal or 
spatial scale of the activities.
    For all species and stocks other than killer whales from the West 
Coast Transient stock, the authorized take is below one-third of the 
stock abundance. The authorized take of transient killer whales, as a 
proportion of the stock abundance is 34.4 percent, if all takes are 
assumed to occur for unique individuals. In reality, it is unlikely 
that all takes would occur to different individuals. The project area 
represents a small portion of the stock's overall range (from Alaska to 
California (Muto et al., 2019)) and based on sightings reports from the 
Orca Network, it is reasonable to expect that the same individual 
transient killer whales would be present within the project area on 
multiple days during the proposed activities. Therefore, it is more 
likely that there will be multiple takes of a smaller number of 
individuals within the project area, such that the number of 
individuals taken would be less than one-third of the population.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals would be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our action (i.e., the issuance of an IHA) with respect 
to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that the issuance of the IHA qualifies to be categorically excluded 
from further NEPA review.

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
WSDOT for the potential harassment of small numbers of 12 marine mammal 
species incidental to the Bainbridge Island Ferry Terminal Overhead 
Loading Replacement Project and Eagle Harbor Maintenance Facility Slip 
F Improvement Project in Bainbridge Island, Washington, that includes 
the previously explained mitigation, monitoring, and reporting 
requirements.

    Dated: September 20, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-20701 Filed 9-23-22; 8:45 am]
BILLING CODE 3510-22-P